Ware v. Harry

ORDER REOPENING THE CASE, DENYING THE MOTION TO
VACATE THE JUDGMENT, AND DENYING A CERTIFICATE OF
APPEALABILITY

ROBERT
H. CLELAND, UNITED STATES DISTRICT JUDGE

Michigan
prisoner Calvin Ware (“Petitioner”) has filed a
motion for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b)(4) concerning the court's decisions
denying him federal habeas relief on April 21, 2008 and
January 15, 2009. Petitioner dated the instant motion on
November 15, 2016. In his motion, he seeks to vacate the
court's judgment asserting that it is void because the
court acted without appropriate jurisdiction. In particular,
he asserts that the court lacked jurisdiction because a
January 31, 2003 state court transcript was not included in
the Rule 5 materials filed in federal court. The court now
REOPENS this case for the limited purpose of resolving
Petitioner's motion. See Heximer v. Woods, No.
2:08-CV-14170, 2016 WL 183629, *1 (E.D. Mich. Jan. 15, 2016)
(reopening case for consideration of Rule 60(b) motion).

Under
Federal Rule of Civil Procedure 60(b), a federal district
court will grant relief from a final judgment or order only
upon a showing of one of the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence could not
have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged; it is based on an
earlier judgement that has been reversed or otherwise
vacated; or applying it prospectively is not longer
equitable; or (6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b).

A
motion under Rule 60(b) must be made within a reasonable time
and - for reasons (1), (2), and (3) - no more than one year
after the entry of the judgment or order or the date of the
proceeding. Fed.R.Civ.P. 60(c)(1); Conner v. Attorney
General, 96 F. App'x 990, 992 (6th Cir. 2004). The
bounds of reasonable time “ordinarily depends on the
facts of the given case including the length and
circumstances of the delay, the prejudice to the opposing
party by reason of the delay, and the circumstances
compelling equitable relief.” Olle v. Henry &
Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). A court
has broad discretion in deciding such matters, but that
discretion is circumscribed by public policy favoring
finality of judgments and termination of litigation.
Waifersong, Ltd. v. Classic Music Vending, 976 F.2d
290, 292 (6th Cir. 1992).

Petitioner
did not file his motion for relief from judgment within one
year or within a reasonable time given that the court denied
relief in 2008 and 2009 and he filed his current motion in
2016. Petitioner fails to provide an explanation for the more
than seven-year delay in filing his motion. He knew or could
have known of his jurisdictional argument at the time of his
habeas proceedings in 2008 and 2009. Accordingly, the motion
is untimely and must be denied.

Moreover,
even if the court considers the merits of the motion under
Federal Rule of Civil Procedure 60(b)(4), Petitioner is not
entitled to relief from judgment. He fails to establish that
this court's judgment is void. The court had jurisdiction
over his habeas case, see 28 U.S.C. § 2254(a),
and did not err in dismissing his habeas petition on the
merits of the claims that he presented in his pleadings.
Accordingly, the court DENIES Petitioner's motion.

A
certificate of appealability is necessary to appeal the
denial of a Rule 60(b) motion. See Johnson v. Bell,
605 F.3d 333, 336 (6th Cir. 2010) (citing United States
v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007)). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court denies relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of
the claim debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). When a court denies relief on
procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
ruling. Id.

With
Slack v. McDaniel in mind, judges within this
district have adopted the following standard for determining
whether a certificate of appealability should issue in the
context of the denial of a Rule 60(b) motion:

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A COA
should issue only if the petitioner shows that (1) jurists of
reason would find it debatable whether the district court
abused its discretion in denying the Rule 60(b) motion and
(2) jurists of reason would find it debatable whether the
underlying habeas petition, in light of the grounds alleged
to support the 60(b) motion, states a valid claim of the
denial of a constitutional right. E.g., Missouri
v. Birkett, No. 2:08-CV-11660, 2012 WL 882727, *2-3
(E.D. Mich. March 15, 2012) (Cleland, J.); Carr v.
Warren, 05-CV-73763, 2010 WL 2868421, *2 (E.D. Mich.
July 21, 2010) (both citing Kellogg v. Strack, 269
F.3d 100, 104 (2d Cir. 2001)) (Zatkoff, J.). Petitioner is
not entitled to a certificate of appealability because he
fails to ...

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